Horizon, Host: Ted Simons

April 19, 2012


Host: Ted Simons

Arizona Supreme Court Ruling: Tucson v Arizona


  • Ken Strobeck, Executive Director of the League of Arizona Cities and Towns, explains what a recent decision by the Arizona Supreme Court says about how much control the State Legislature has over local charter governments.
Guests:
  • Ken Strobeck - Executive Director, League of Arizona Cities and Towns
Category: Law   |   Keywords: law, arizona, supreme, court, justice, ,

View Transcript
Ted Simons: Earlier this month the Arizona Supreme Court ruled that the state does not have the authority to tell charter cities how to conduct their municipal electrics. The ruling focused on how much authority the state has in telling cities how to deal with local issues. Here to talk about all this is Ken Strobeck, he's executive director of the League of Arizona Cities and Towns. Good to see you again.

Ken Strobeck: Thanks, Ted.

Ted Simons: Talk about this recent Supreme Court decision here and the impact it -- I'm not sure a lot of folks realize, this could be pretty far reaching.

Ken Strobeck: It really is. It's a very significant decision, because the court ruled that in matters of purely local concern, if a city is adopted a charter which has to be vote order by its citizens, and it's a matter of local concern, not a matter of statewide concern, the local charter trumps state law.

Ted Simons: Let's talk about what exactly charter government is. Give us a definition.

Ken Strobeck: Ok. The Arizona constitution allows for cities over 3500 and over in population to adopt the charter. And the constitution calls it the organic law of the city, and the Supreme Court in this case and in other cases has referred to it essentially as a city constitution. It's a document that has to be drafted by very complex system, the board of free holders gets together, drafts a charter, once the charter has been approved by the council then it goes to the governor, the governor has to approve a charter and it becomes essentially the constitution of that city. And any changes to it have to be vote order boy the people.

Ted Simons: Why would a city want a charter, why would the city not want a charter?

Ken Strobeck: Very good question. In fact, in many cases the charter actually limits what a city council can do. In most noncharter cities and towns, if a council wants to raise the sales tax rates, for example, they can do that boy a majority vote of the council. That is, of course, challengeable by the people if they want to do a referendum, but in the case of a charter city you may have a provision that says there can be no tax increases unless vote order by the people. In some case as charter is liberating, in others, a charter is more limiting.

Ted Simons: If the city wants a charter government they need to go through the machinations you just described.

Ken Strobeck: Right.

Ted Simons: OK. Supreme Court decision, this dealt with municipal elections, what the idea of one side wanting to make it partisan and the city saying we don't do that? Or vice versa?

Ken Strobeck: Yeah, yeah. Essentially in 2009 there was a law that -- a bill introduced in the legislature by senator Johnathan Payton from Tucson, saying that Tucson could no longer conduct partisan elections, they're the only city of the 91 in Arizona that actually conduct partisan elections. And that they could also no longer do nominations by ward for council seats but election at large for those seats. So basically threw out two provisions that were in the Tucson city charter. The Tucson city charter was adopted in 1929, and they've been conducting elections this way ever since 1929, and in fact a few years ago they had a ballot question in Tucson to say, shall we change the way we do elections? The people said no, they voted no on that issue, and the Supreme Court in this case said that again, because it was a matter of local concern, the manner in which a city elects its own representatives mayor and council, there's nothing more purely local than that decision, and in that case since it was a charter 70 had these provisions, the state legislature could not overrule them.

Ted Simons: So how do you separate laws of statewide and local interests? Where is that dividing line?

Ken Strobeck: There's the million dollar question. And probably will be that if more of these questions are litigated. This decision actually made reference to that. So there's always going to be debate, always going to be a little pull and tug between local authorities between state authorities. But simply saying that something is a matter of statewide concern by putting that as an amendment or as a clause in a bill in the legislature does not automatically make it a matter of statewide concern. Unless the court agrees with them.

Ted Simons: So I think this is -- it's not self-evident, and so as you mentioned, you have to find this balance, it seems as though in recent years the legislature has been very interested in municipal matters and passing a lot of laws that deal with local issues. Talk about that dynamic, especially in light of this decision.

Ken Strobeck: Yes. Exactly. We went back and did a little research, looked over the last few years of some of the laws that have been passed where there is this clause that says we find this to be a matter of statewide concern. Some of these may or may not be. Some things about the components of various general plans that cities have to adopt. That's the local matter. Outdoor shooting range regulation. Is that really a matter of statewide concern? So maybe, maybe not. A sign walkers, remember those people that -- they put on there that that signs and all?

Ted Simons: Yeah, yeah…

Ken Strobeck: Well that was a matter of statewide concern. Probably not if it went through a court. This is my favorite one. Shopping cart retrieval. A matter of statewide concern.

[Laughter]

Ken Strobeck: And just recently, guns in public buildings. That may be something you can challenge as a matter of local control rather than statewide. And even today, the legislature passed the house bill 2826 that mandate consolidated election dates that says that all the cities over 70 that have spring elections cycles can no long surrender that, they have to be moved to the fall. Again, that's one of these things that seems to be very much tied to this Tucson V Arizona decision.

Ted Simons: We've had lawmakers on the program and I've asked them directly about this, why are you focus so much on cities, and the response is that cities are basically subdivisions of the state. And the state is a supervisory capacity over cities. Are you saying with this decision that mind-set needs to change?

Ken Strobeck: I am definitely saying that. I think there's a miss appropriation of the word ‘state’. When you look at the fact state authorizes cities, it does so through the constitution. But the legislature has no provision whatsoever to create a city or to dis-incorporate a city. It is only done by the people through the people outlined in the constitution and in conformity with the laws that are passed that are of statewide applicability. When you talk about local authority, and the fact that the cities are a political subdivision in that sense, I think what they get mixed up in is that the state legislature doesn't create cities, the state constitution creates cities. The same way it creates the state legislature. So in a sense we're battling a little more as equals when you talk about matters of local concern versus statewide concern. And we do have to follow the laws that they pass.

Ted Simons: Talk about the history of this in a sense of, it didn't seem like in years past we heard a lot of the state getting all that interested in local issues, seeing a lot of that right now. The economy has something to do with that, the state wants to ease its budget, let's get the cities to pony up a little more than they have in the past. Is that mostly it? What's going on here?

Ken Strobeck: I don't know. I think there's always going to be a bit of tension between the state and between cities. Because you have interest groups that come to the legislature that want to pass one size fits all legislation. Maybe a tax exemption for an industry. So we've had many cases of that over the last few years. And also the takeaway of local control on matters such as photo radar. There's been several bills this year to say cities couldn't pass -- couldn't have photo radar in their communities. Those have been defeated, but those are matters that you have to go, is this really a statewide issue? But a lot of people get an idea and they say, we want to pass a law and it's easier to go to the legislature and have it apply to everyone statewide.

Ted Simons: OK. So let's talk about what this means for laws that have been already passed. What happens?

Ken Strobeck: Well, obviously they would have to be litigated and viewed to go through this whole process to find them unconstitutional. My hope is that at least the precedent established by this case will be slowing down maybe to some extent, some of those proposals that come through the legislature, and maybe they'll think twice, maybe the rules attorneys and the house and senate will say, are you sure you want to pass this, because it very well could be unconstitutional in light of the strong opinion that came out in Tucson V Arizona.

Ted Simons: I was going to say, as far as proposed laws, this would be -- I don't sense this is getting a lot of traction, a lot of buzz at the legislature. Are they aware what's going on with this decision?

Ken Strobeck: I'm sure there are some, but I haven't heard in the hallways, a lot of conversation were this particular issue. There's been some media coverage about it, but I think maybe again, it's going to take some time if there are more court cases that involve local authority versus state authority.

Ted Simons: Is that relationship a little away from this decision, is that relationship between the state and cities charter or otherwise, do you see maybe a little more understanding here recently, or is it still as you mentioned, maybe the state not quite figuring out exactly what the state needs.

Ken Strobeck: I think maybe there's more of that than the other case. But again, you have to go back to all this all developed. Back in the 19th century, this case references that, that there was a very strong belief that cities were entirely creations of state legislatures. There's a historic decision in Iowa in the 1860s called Dylan's rule, and this says a Supreme Court judge in Iowa wrote legislatures create cities and if they can create them they can destroy them. In other words they have Supreme Court authority. There was another decision out of Michigan that said no, local government has inherent rights and you can't take those away at the lush. Our constitution was written 40 years after those decisions, when the political climate was very different. It was part of the progressive era where you had initiative and refer recent dumb and council manager government, all those things intended to put more power back in the hadn’t of the people and just as bails reference that, he says 19th century thought says the legislature was supreme, our framers rejected that idea.

Ted Simons: Well that was interesting stuff. The fallout should be interesting too. Good to have you here. Thanks for joining us.

Ted Simons: Friday on Arizona "Arizona Horizon," Governor Brewer says she won't sign any new bills until the budget is done. This after once again vetoing a bill that allows guns in public buildings.

Ted Simons: Those stories and more Friday on "The Journalists' Round Table." That is it for now. I'm Ted Simons. Thank you so much for joining us. You have a great evening.

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